Kirklees Council v LS & Anor

Family law judges are often required to make hard, binary choices between two tough outcomes, neither of which is ideal for the child, or children, concerned. This is such a case.

The essential question is whether a boy, aged two next week, should now be placed for adoption, thereby cutting him off from his two elder sisters with whom he has always lived and to whom he is well attached; or left to live and grow up within the care and fostering system for the remainder of his childhood, but remaining in close contact with his sisters, if not, indeed, living with them.

There has already been one appeal in this case. The factual and procedural history up to that date, 30 November 2017, is, as one would expect, very clearly described in the judgment of McFarlane LJ, now publicly available at [2017] EWCA Civ 2333. I see no reason to repeat it, and I respectfully incorporate the material parts of that judgment into this judgment by reference.

In very brief summary, a mother has given birth to three children whom, like McFarlane LJ, I will call A, B and C. A and B are girls now aged seven and a half and just over six. They have the same father, who is present and represented at the present hearing (although he has been unable to come this afternoon for judgment).

C is a boy who will be two at the end of next week. His father is a different man, who appears to have played no part at all in his life or in these proceedings, but who is fully aware of them. He will require to be given notice of any later adoption application.

As long ago as April 2017, a schedule of facts and threshold grounds for making care orders was agreed. In a sentence, the mother has, very sadly, struggled for a long time with drug and alcohol dependence. This led her to leave the children in situations of risk, and she has long ago accepted that she could not, so far ahead as one can foresee, care for any of them. That is a sad and brave decision for which she should be respected.

The children have not lived with their mother since August 2016 when, it should be noted, C was about six months old. They were taken into the interim care of the local authority and placed with a short-term foster family with whom they remain, and by whom they are appropriately cared for. Those foster parents were, and are currently, approved only as short-term foster parents, who are contracted by the local authority through a private agency.

Last year, the local authority planned and wished to place all three children for adoption, and they applied for placement orders. That application was dismissed by the court. The local authority appealed but, on the day of the hearing, pursued their appeal only in relation to C, for they had accepted and decided by last November that A and B were, by then (and now), too old to be successfully adopted.

The Court of Appeal decided to discharge the full care orders which had been made in relation to all three children and substitute interim care orders in relation to all three children. The application for a placement order in relation to C was reinstated, and future case management directions were given.

Today, it is completely accepted and agreed by all parties, namely the local authority, the mother and the father of A and B, and their guardian, that I should now make final care orders in relation to A and B on the current care plans. Those care plans contemplate that A and B will remain in long-term foster care throughout their childhoods, placed together with each other but not necessarily with the current foster parents. Those foster parents are currently being assessed as long-term foster parents by the private agency that employs them; but it is not known yet whether they will be approved as long-term foster parents by that agency nor, even if they are approved by the agency, whether they will be approved by the local authority. In any event, the local authority make quite clear in the present proceedings that they make no commitment, still less any "guarantee", that they will leave A and B long-term with the present foster parents who had only ever been intended to be short-term.

Quite apart from future assessments and decision making as to the long-term suitability of the present foster parents, it is inescapable to mention cost, for in these resource-scarce times any local authority, who are entirely funded by public money, must necessarily take cost into account even when making welfare based decisions. Because the current placement is a private agency placement, the local authority are currently paying £2,000 per week, or £104,000 per annum, to the agency for the three children. If the three children were placed with long-term foster parents directly employed by the local authority, the cost to the local authority would currently be about £600 per week or just over £31,000 per annum, i.e. less than one-third of the cost through the agency. That is, of course, not just a one-off difference of over £70,000, but an annual difference year in/year out for many years to come.

I stress at once that the foster parents themselves do not receive £2,000 per week, for a significant part of it is the fee or profit of the agency; but the foster parents do receive more than they would if employed directly by the local authority. The current foster parents have apparently made clear that they are not willing to be employed directly by the local authority at the lower rates.

So, for a range of reasons, it is unclear today whether any of these children will remain long-term with the present foster carers. The identification of foster carers is, however, firmly within the discretion and decision making duties of the local authority, not of the court, and I must, and do, proceed on the basis of that uncertainty.

As all parties and the guardian are agreed as to the outcome in relation to A and B, I will make full care orders placing them in the care of the local authority. I am, indeed, satisfied that they require the protection of care orders and that there is no other available outcome which could protect them and meet their needs. The present foster parents are aware of the possibility of applying for special guardianship orders but have not indicated any intention to do so.

I turn now to discrete consideration of C. It is the case of the local authority -- very strongly supported by the guardian -- that he is still young enough to be successfully adopted, and that the very fact that he has formed good attachments with the foster parents means that he is likely to be able, without long-term damage, to form good attachments with a new adoptive parent or parents.

The family finding social worker from One Adoption West Yorkshire, Mrs Chloe Tankard, said, and I agree, that C has had a very long period of stability. He has shown he can make good attachments. If he can make good attachments, he can transfer them. One Adoption is, in effect, the shared adoption department or team of four local authorities, including the applicant local authority, who pool this aspect of their duties.

If C was an only child, the case for adoption would undoubtedly be a strong one. However, there is, in the present case, the very strong disadvantage of loss of contact, not only with his mother, whom he does see once a month at a contact centre, but also with his sisters, with whom he has always lived and with whom he is mutually very well attached.

The mother, who loves all her children very much and who is appropriately concerned for the wellbeing of all three of them, strongly opposes any adoption, principally because of that effect on the relationship between them. At paragraphs 7 and 8 of her written statement dated 7 February 2018, now at bundle page C148, the mother says:

"(7)

With regard to C, I understand the plan advanced by the local authority, and supported by the guardian, is for him to be placed for adoption outside of the family. I disagree with this plan and believe that because of the bond he has with his sisters, with whom he has lived throughout his life, he should remain placed with them albeit in a long-term foster placement. I feel that if he was to be removed from his siblings and his ties ended with his birth family, this will cause him greater harm in the future. For this reason, I believe that he should be placed in a long-term foster placement with his sisters.

"(8)

I understand that it is not ideal for a child of C's age, or, indeed, any child, to be a looked after child for a long period of time. In this instance, I feel that it is in C's best interest that he continues to be placed with his sisters and that he maintains direct contact with his family and sisters."

The mother has attended the whole of the present hearing and listened very attentively. She made plain that she did not wish to give any oral evidence and no party sought to cross-examine her. Her case and position have been very well and cogently represented by Mr Sam Momtaz QC and Miss Joanne O'Shea.

The legal framework is clear and has been helpfully set out in an agreed document headed "Summary of the legal principles all parties agree should be applied to the application before the court". I incorporate that document into this judgment by reference and direct myself by it.

In summary, the application for a placement order is one to which section 1 of the Adoption and Children Act 2002 applies. The paramount consideration must be the welfare of C throughout his life, words which I stress. I must have regard to, among others, all the matters listed in section 1 (4) of that Act; and, by virtue of section 1 (6), I must consider the whole range of powers available to me in the particular child's case. I must not make any order under the Adoption and Children Act 2002 unless I consider that making the order would be better for C than not doing so.

Pausing there, in the circumstances of the present case there are only two powers effectively available:  to make a care order on a care plan of long-term fostering, or to make a placement order to pave the way to adoption. Any lesser order than a care order is not suggested and would patently fail to protect the child. The possibility of a special guardianship order is not available since the only people who might conceivably currently apply for one, namely the present foster parents, have chosen not to do so. There is no family member, relative or friend who offers to care for C and has been assessed as suitable to do so.

As the mother does not consent, I cannot make a placement order unless I am satisfied, as section 21 (3) (b) requires, that her consent should be dispensed with. By section 52 (1), I cannot dispense with her consent unless I am satisfied that "the welfare of the child requires the consent to be dispensed with". The word "requires" in section 52 (1) (b) is a strong word and has been famously paraphrased as meaning "where nothing else will do".

An application for a placement order also engages Article 8 of the European Convention on Human Rights, which it is not necessary to quote. Any interference with the protected right can only be justified within the terms of Article 8 (2) if that interference is "necessary". The word "necessary" connotes the same high imperative as "requires" and the approach of "nothing else will do".

Section 1 (4) (f) of the Act importantly requires the court to consider the relationship which the child has with relatives (which includes sisters) and the wishes and feelings of any of the child's relatives (including, therefore, his sisters) regarding the child. However, the focus of section 1 is clearly upon the welfare of the subject child (viz in this case C) and the court is not required to give decisive weight to the welfare of relatives, including even sisters who are themselves still children. This follows from the paramountcy of the welfare of the child concerned under section 1 (2). As Miss Gillian Irving QC, on behalf of the local authority, put it in the present case, the welfare of the sisters cannot trump the welfare of C in my decision.

In support of his client's position, Mr Momtaz produced, and relied upon, a document downloaded from the web headed "BBC/Adoption UK Survey:  a snapshot of modern day adoption" published on 26 September 2017. The thrust of that document (which I assume summarises a programme broadcast on Radio 4 that day) is that many adoptive families experience serious challenges and that "child to parent violence in adoption is increasingly recognised as being the result of trauma suffered as a result of neglect and abuse experienced by adoptees with their birth families before going into care". "Adoption is not a silver-bullet - these children's problems do not just disappear overnight." Nevertheless "...adoption can work for the majority with the right support. Nine out of ten respondents [viz adopters, not adoptees] said they were glad that they had adopted."

I can only place limited weight on that document. It is highly skeletal in an area which abounds with research data. It is vague as to the ages at which the surveyed children were adopted and, indeed, as to the "trauma" that the surveyed children had suffered before going into care.

In the present case, C was indeed neglected and left at risk around the age of six months, but there is no evidence that he was exposed to abuse such as violent behaviour or language directed at him or in his presence. So far as I am aware, he was not an abused child and was, fortunately, largely undamaged at the point of being taken into care, although the abrupt change in his carer at that point will have been damaging to him. Further, the document focusses solely on adoption and adoption breakdown. It says nothing about the risks associated with long-term foster care.

Mr Momtaz and Miss O'Shea, by their written position statement and also by the oral submissions of Mr Momtaz, highlight and emphasise what was the case of the local authority nine months ago when they were first applying for placement orders in relation to all three children. When they were contemplating that all three children would be adopted (but not together), they said in their final care plans, dated 31 May 2017, both for the sisters and for C, now at bundle pages D88 and D120:

"The local authority will not consider any adoptive placement for the children that would not facilitate sibling contact... activity based within the community..."

i.e. direct face to face contact.

In an assessment of the sibling relationship dated 18 December 2016, the then social worker, Eleanor Armitage, had said, now at bundle page E124:

"Throughout the assessment, positive observations have been made of the sibling relationship. There is no evidence of the existence of the factors identified at the beginning of this assessment that can be negative of children being placed together. Therefore, it is clear that where possible the children should be placed together.”

The same assessment did, however, immediately continue with observations to the effect that finding a placement for all three children together would be difficult and that:

"It is not in the children's best interests to prevent any of the three children from being provided with a permanent and stable home purely to keep all three siblings together. Therefore, if a placement is not able to be allocated for all three children, then separation must occur.”

Now that the local authority are proposing adoption only for C, they cannot, and do not, propose continuing direct contact between him and his sisters, for any such contact would imperil the confidentiality of the adoptive home and very few adopters are willing to accept contact with the birth family in such circumstances (contact between two children who are both in adoptive homes is a different matter).

So Mrs Tankard said in evidence, and I accept, that it would very much limit the pool of prospective adopters if there were direct sibling contact. The potential for identifying detail to be disclosed is too great.

So the local authority now propose that if, as they seek, C is placed for adoption and adopted, contact with his sisters should be maintained by regular exchanges of letters, cards, DVDs and other forms of indirect contact which can be safely monitored; but no face to face or direct contact, and no Skype -type contact so far ahead as can be foreseen.

Mr Momtaz and Miss O'Shea powerfully submit that this represents a complete reversal of the position of the local authority with regard to contact as recently as last May, and that (although this is my phrase not theirs) the local authority are now willing to sacrifice the importance of direct inter-sibling contact on the altar of the permanence of adoption.

The local authority and the guardian accept -- and, indeed, both aver -- that there is a very good, natural, healthy and enriching relationship and two-way attachment between C and his sisters. They naturally play together and interrelate as siblings, and the elder sisters are attentive to, and caring of, their younger brother. In simple human terms, they all love each other. The local authority and the guardian acknowledge that it will be a great loss to C, as well as to his sisters, if those attachments and that relationship are broken, but the local authority and the guardian both say very firmly and strongly that that loss is strongly, and not marginally, outweighed by the great advantage to C from adoption of permanence, and the many disadvantages of continuing for 15 or more years as a long-term foster child within the care system.

The guardian said, both in her written report at paragraph 29 and again in her oral evidence, that this is not a "finely balanced" or marginal decision by her. She said in her oral evidence that, in her opinion, the need for permanence "significantly outweighs" the undoubted disadvantages of adoption in this case.

Mr Momtaz confronted the argument based upon "permanence" by reference to section 31 (3B) of the Children Act 1989, as amended, and the reference there to "permanence provisions" as including long-term care. So he correctly submitted that, in the eyes of the law, there are other forms of "permanence" than adoption and that they may include long-term care such as fostering. That, of course, is correct; but when the guardian and the local authority are emphasising permanence in this case, they are not doing so in a legalistic, but in a social and psychological sense.

Both the current social worker, Miss Emma Eaton-Whitfield, and the guardian very clearly explained the disadvantages of long-term fostering for a young child with 15 or so years of childhood ahead of him. Miss Eaton-Whitfield said that this child has no complex or special needs. He does not require any additional support or social work input, but if he remains in care, he will require to be regularly visited and seen by a social worker who will inevitably change over the years so that, by the end, he would be likely to have experienced several. He would be the subject of two LAC and two PET reviews each year and an annual medical. He would require to be the subject of professional meetings at school. He would carry what may still be perceived as the stigma of being a child in care. Even such obvious and normal features of childhood as staying away overnight with friends or a 'sleep-over' may require express prior approval from the social worker after some degree of criminal checks and other enquiries. A local authority has a very high level of responsibility for any child in their care and cannot easily delegate these responsibilities in the modern safety-conscious world; but it serves potently to indicate how intrusive the local authority have to be into the life and lifestyle, as he grows, of a child in care.

These considerations led the guardian, in turn, to say that, in her view, the overwhelming advantage of adoption is what C could achieve in an adoptive placement in relation to stability, security and permanence of family life, and the lack of involvement of outside agencies. She said that these advantages are highly more likely to be available in an adoptive placement than in long-term foster care.

The guardian stressed, too, that any aspiration of long-term foster care for all three children together lacks realism and could take at least a year to find. In contrast with that delay, the family finder, Mrs Tankard, is very confident that she can rapidly identify a suitable adoptive home for C and, indeed, already has some potential adopter or adopters under consideration.

Against all that background, I now address seriatim the factors listed in section 1 (4) of the Adoption and Children Act 2002. The wishes and feelings of C with regard to adoption cannot, of course, be ascertained. At the age of two, he has no inkling of the concept. There is, however, no doubt that his current feelings are ones of loving attachment to his sisters, and it is to be assumed that if he could articulate wishes regarding adoption, he would currently say that he does not wish to be separated from his sisters.

This child, as Miss Eaton-Whitfield said, does not have any particular or "complex" needs. He is fit and healthy, and appropriately developed physically, intellectually and emotionally for his age. He is currently well bonded in his foster home and does not appear to have experienced any significant abuse or other damaging experiences. He, thus, has the needs which any child has to a secure and lasting home and family unit (which may only be one parent) in which to grow and flourish.

It is not easy to predict the likely effect on C throughout his life of having ceased to be a member of his original family and become an adopted person. He may be very pleased that he was adopted. He may come bitterly to resent it. Most certainly, in the short run, there will be the damaging effect of disruption of his relationship with his sisters and, indeed, with his mother whom he does currently see monthly.

I wish to stress that I am deeply conscious in this case, as in most cases involving adoption, that C and his sisters are likely to outlive most or all other relatives connected with them, and that the legal effect of adoption would be to sever lifelong the legal relationship between them. They would, however, be brought up with continuing indirect contact and knowledge of each other, and the capacity to resume a social and emotional relationship in adulthood if they wished.

More generally, it has to be recognised that the effect upon C throughout his life of having ceased to be a member of his original family and become an adopted person is likely to be profound. We are all products of our environment and upbringing and, clearly, if he is brought up in a different, adoptive environment, he will develop into a different person than he would if brought up in some other long-term care environment.

C is a boy aged two. His background is as already described by McFarlane LJ and briefly by me. He has no especial characteristics other than his close attachment to his sisters, as I have already fully described.

It must have been harmful to C abruptly to be removed, together with his sisters, from the care of his mother in August 2016. I am not aware that he is currently suffering harm. He is at risk of suffering harm if he is removed from the current foster parents to whom he is already attached; but, as already explained, there is no certainty that he can remain there anyway. He would suffer harm, too, if removed from the daily contact with his sisters.

C does have a strong relationship with his sisters and, to a lesser but important extent, with his mother. If he remains a foster child, those relationships would continue, although not necessarily on a daily basis if he were not fostered long-term in the same home as his sisters. The relationships are undoubtedly of value to him.

Paragraph 1 (4) (f) (ii) is not in point in the present case since none of C's adult relatives can care for him.

The sisters have not been informed of the possibility of adoption and it has not been discussed with them even in age appropriate language or terms, but it can confidently be assumed that their strong wishes and feelings are to continue to live with their brother, whom they love, and not be separated from him.

Having now reviewed the matters in section 1 (4) of the 2002 Act, I now have to perform my own balance. As I said at the outset of this judgment, the ultimate decision can only be a binary one. I have very carefully considered and thought about all these factors overnight. Like the local authority and the guardian, I am persuaded that the advantages of adoption so outweigh the disadvantages of a whole childhood in long-term care that the balance comes down very firmly in favour of adoption in this case, notwithstanding the quality of C's relationship with his sisters and the impact of adoption upon him and that relationship.

It is, indeed, a case in which "nothing else will do" for C, and his welfare does require the consent of his mother to be dispensed with. I will, therefore, make full care orders, placing A and B in the care of the local authority. I will make a care order placing C in the care of the local authority, followed immediately by a placement order. I dispense with the consent of the mother to the placement order on the ground that his welfare requires her consent to be dispensed with.